Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 21 contracts

Samples: Trust Agreement (Wintrust Financial Corp), Trust Agreement (Commercial Capital Bancorp Inc), Trust Agreement (Tidelands Bancshares Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers in it vested by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee from exercising its rights under Section 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 17 contracts

Samples: Trust Agreement (Geovera Insurance Holdings, Ltd.), Trust Agreement (Novastar Financial Inc), Trust Agreement (American Safety Insurance Holdings LTD)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any ~~bankruptcy law~~ Bankruptcy Law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 15 contracts

Samples: Trust Agreement (Paragon Commercial CORP), Trust Agreement (Wilshire Bancorp Inc), Trust Agreement (First Acceptance Corp /De/)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers in it vested by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee from exercising its rights under Section 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 15 contracts

Samples: Trust Agreement (Northstar Realty), Trust Agreement (Northstar Realty), Trust Agreement (MortgageIT Holdings, Inc.)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~7.01: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if if, other than during the occurrence and continuance of an Event of Default, (i) in performing its duties under this Trust ~~Agreement~~ Agreement, the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust ~~Agreement~~ Agreement, the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~negligent action, ~~bad faith~~ its own negligent failure to act or its own willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel or other experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdictionthereon; (gd) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (he) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, ; and~~, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney;~~ (if) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents, attorneys, custodians~~ agents or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 12 contracts

Samples: Trust Agreement (Public Service Electric & Gas Co), Trust Agreement (Public Service Enterprise Group Inc), Trust Agreement (Pse&g Capital Trust Iii)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 11 contracts

Samples: Trust Agreement (Georgia Bancshares Inc//), Trust Agreement (Stifel Financial Corp), Trust Agreement (State National Bancshares, Inc.)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01 and except as provided by law: (ai) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (bii) if (iA) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (iiB) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (~~iii~~C) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Trust Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on upon an ~~Officers’~~ Officer's Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; (iv) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to the Property Trustee, Depositor or the Trust Securities Guarantor or any of their Affiliates, and may include any of their employees) and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; (v) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Securityholder pursuant to this Trust Agreement, unless such Securityholder shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys' fees and expenses) and liabilities which might be incurred by it in complying with such request or direction; provided that, nothing contained in this Section 8.03(v) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (vi) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor personally or by agent or attorney; (vii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (viii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (ix) the Property Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Trust Securities unless either (A) a Responsible Officer of the Property Trustee shall have actual knowledge of the default or Event of Default or (B) written notice of such default or Event of Default shall have been given to the Property Trustee by the Depositor~~. No~~ , the Administrative Trustees or by any Holder of the Trust Securities; (x) no provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on ~~it,~~ it in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or ~~acts,~~ acts or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty; (xi) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it; (xii) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any tax or securities form) (or any rerecording, refiling or reregistration thereof); (xiii) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (xiv) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (A) may request instructions from the Holders of the Trust Securities, which instructions may only be given by the Holders of the same Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such remedies, rights or actions, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (C) shall be protected in acting in accordance with such instructions; and (xv) unless otherwise expressly provided herein, any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers' Certificate.

Appears in 10 contracts

Samples: Trust Agreement (Southwestern Electric Power Co), Trust Agreement (American Electric Power Co Inc), Trust Agreement (Southwestern Electric Power Co)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of or bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 7 contracts

Samples: Trust Agreement (Hanmi Financial Corp), Trust Agreement (Matrix Bancorp Inc), Trust Agreement (Hanmi Financial Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(e) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 6 contracts

Samples: Trust Agreement (Sun Capital Trust Ii), Trust Agreement (First Star Capital Trust), Trust Agreement (Pfbi Capital Trust)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01 and except as provided by law: (ai) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (bii) if (iA) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (iiB) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (~~iii~~C) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Trust Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on upon an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; (iv) the Property Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (v) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Securityholder pursuant to this Trust Agreement, unless such Securityholder shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys' fees and expenses) and liabilities which might be incurred by it in complying with such request or direction; (vi) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor personally or by agent or attorney; (vii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (viii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (ix) the Property Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Trust Securities unless either (A) a Responsible Officer of the Property Trustee shall have actual knowledge of the default or Event of Default or (B) written notice of such default or Event of Default shall have been given to the Property Trustee by the Depositor~~. No~~ , the Administrative Trustees or by any Holder of the Trust Securities; (x) no provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on ~~it,~~ it in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or ~~acts,~~ acts or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty; (xi) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it; (xii) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any tax or securities form) (or any rerecording, refiling or registration thereof); (xiii) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; and (xiv) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (A) may request instructions from the Holders of the Trust Securities, which instructions may only be given by the Holders of the same Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such remedies, rights or actions, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (C) shall be protected in acting in accordance with such instructions.

Appears in 6 contracts

Samples: Trust Agreement (Enserch Capital I), Trust Agreement (Txu Gas Capital Iv), Trust Agreement (Txu Capital I)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor~~’s written instruction~~ 's opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.

Appears in 6 contracts

Samples: Trust Agreement (Bb&t Capital Trust I), Trust Agreement (Bb&t Corp), Trust Agreement (Bb&t Capital Trust I)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 6 contracts

Samples: Trust Agreement (Sierra Pacific Resources Capital Trust Ii), Trust Agreement (Owens Corning Capital Ii), Trust Agreement (Owens Corning Capital Ii)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or re-registration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may~~ ; provided that nothing contained in this Section 8.3(e) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 5 contracts

Samples: Declaration of Trust (HMB Capital Trust III), Trust Agreement (Mountain National Bancshares Inc), Trust Agreement (Auburn National Bancorporation Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(f) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 5 contracts

Samples: Trust Agreement (First Empire Capital Trust I), Trust Agreement (First Empire State Corp), Trust Agreement (First Empire Capital Trust I)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~7.01: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if if, other than during the occurrence and continuance of an Event of Default, (i) in performing its duties under this Trust ~~Agreement~~ Agreement, the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust ~~Agreement~~ Agreement, the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~negligent action, ~~bad faith~~ its own negligent failure to act or its own willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel or other experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdictionthereon; (gd) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ reasonably satisfactory to the Property Trustee which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (he) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (if) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents, attorneys, custodians~~ agents or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jg) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, ~~request and~~ conclusively rely on upon an Officers~~’ Certificate which~~' Certificate; (h) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon ~~receipt of such request, shall be promptly delivered~~ it by ~~the Depositor. No provision of~~ this Trust ~~Agreement~~ Agreement; (i) the Property Trustee shall not be deemed to ~~impose~~ have notice of any ~~duty~~ Default or ~~obligation on~~ Event of Default unless a Responsible Officer of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Property Trustee at the Corporate Trust Office and such notice references the Trust Securities and this Trust Agreement; (j) the rights, privileges, protections, immunities and benefits given to ~~perform~~ the Property Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Property Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder; and (k) the Property Trustee may request that the Depositor deliver an Officers' Certificate setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Trust Agreement, which Officers' Certificate may be signed by any ~~act or acts or exercise~~ person authorized to sign an Officers' Certificate, including any ~~right, power, duty or obligation conferred or imposed on it,~~ person specified as so authorized in any ~~jurisdiction in which it shall be illegal, or in which~~ such ~~Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation~~certificate previously delivered and not superseded.

Appears in 5 contracts

Samples: Trust Agreement (Pseg Power Capital Trust V), Trust Agreement (Pseg Funding Trust Ii), Trust Agreement (Pseg Funding Trust Ii)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(e) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 5 contracts

Samples: Trust Agreement (Fidelity Bancshares Nc Inc /De/), Trust Agreement (Fidbank Capital Trust I), Trust Agreement (Triangle Capital Trust)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 5 contracts

Samples: Trust Agreement (Glacier Water Services Inc), Trust Agreement (Liberty Financial Capital Trust Ii), Trust Agreement (Liberty Financial Capital Trust Ii)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any ~~bankruptcy law~~ Bankruptcy Law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 5 contracts

Samples: Trust Agreement (Stifel Financial Corp), Trust Agreement (Stifel Financial Corp), Trust Agreement (Coastal Banking Co Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein;~~' Certificate; 41 37 (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive written instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request written instructions from the Holders (of the Trust Securities which written instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking 42 38 such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such written instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 5 contracts

Samples: Trust Agreement (Mbna Capital V), Trust Agreement (Mbna Capital V), Trust Agreement (Mbna Capital V)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor~~’s written instruction~~ 's opinion as to the course of action to be ~~taken~~ taken, and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.

Appears in 5 contracts

Samples: Trust Agreement (Northern Trust Corp), Trust Agreement (Northern Trust Corp), Trust Agreement (Fifth Third Bancorp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s ~~written instruction~~ opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement as provided in Sections 8.1(c) and (d); (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Bb&t Corp), Trust Agreement (Bb&t Corp), Trust Agreement (Bb&t Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of or bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 4 contracts

Samples: Trust Agreement (First Community Bancorp /Ca/), Trust Agreement (Nara Bancorp Inc), Trust Agreement (Lakeland Bancorp Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Fib Capital Trust), Trust Agreement (Praegitzer Industries Inc), Trust Agreement (Us Home & Garden Trust I)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officers’ Certificate unless otherwise expressly provided herein~~Officer’s Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction; provided, ~~including reasonable advances as may~~ that nothing contained in this Section 8.3(e) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions; (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty; (j) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten Business Days after it has delivered such notice, or such reasonably shorter period of time set forth in such notice (which to the extent practicable shall not be less than two Business Days), it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Trust Agreement as it shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own bad faith, negligence or willful misconduct; (k) whenever in the administration of this Trust Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer’s Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrator; (l) when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including the fees and expenses of its counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors’ rights generally; and (m) the Property Trustee shall not be charged with knowledge of an Event of Default unless such Event of Default has occurred as a result of the act or failure to act of the Property Trustee, a Responsible Officer of the Property Trustee obtains actual knowledge of such event or the Property Trustee receives written notice of such event from Holders of at least 25% of the Outstanding Trust Securities (based upon Liquidation Amount).

Appears in 4 contracts

Samples: Trust Agreement, Trust Agreement (Morgan Stanley), Trust Agreement (Morgan Stanley)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01 and except as provided by law: (ai) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (bii) if (iA) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (iiB) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (~~iii~~C) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on upon an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; (iv) the Property Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (v) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Securityholders pursuant to this Trust Agreement, unless such Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys' fees and expenses) and liabilities which might be incurred by it in complying with such request or direction; (vi) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document reasonably believed by it to be genuine, unless requested in writing to do so by one or more Securityholders, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor personally or by agent or attorney; (vii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder, provided that the Property Trustee shall be responsible for its own negligence or recklessness with respect to selection of any agent or attorney appointed by it hereunder; (viii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (ix) the Property Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Trust Securities unless either (1) a Responsible Officer of the Property Trustee shall have actual knowledge of the default or Event of Default or (2) written notice of such default or Event of Default shall have been given to the Property Trustee by the Depositor~~. No~~ , the Administrative Trustees or by any Holder of the Trust Securities; (x) no provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on ~~it,~~ it in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or ~~acts,~~ acts or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty; (xi) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it; (xii) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any tax or securities) (or any rerecording, refiling or registration thereof); (xiii) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; and (xiv) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder the Property Trustee (i) may request instructions from the Holders of the Trust Securities, which instructions may only be given by the Holders of the same proportion of Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such remedies, rights or actions, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions.

Appears in 4 contracts

Samples: Trust Agreement (Midamerican Energy Financing Ii), Trust Agreement (Mp&l Capital I), Trust Agreement (Midamerican Energy Financing Ii)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s ~~written instruction~~ opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (BB&T Capital Trust II), Trust Agreement (State Street Corp), Trust Agreement (BB&T Capital Trust II)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, appraisal, bond, debenture, approval, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Depositor and the Property Trustee shall be fully protected in acting in accordance with such instructions; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it necessary or desirable that a matter be proved or established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed~~ the Depositor or the Administrative Trustees, and such Officers' Certificate shall be full warrant to the Property Trustee for any action taken, suffered or omitted by ~~such Administrative Trustee and setting forth such direction or act~~it under the provisions of this Agreement upon the faith thereof; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the ~~Property Trustee, the~~ Depositor or any of its Affiliates~~, and may include any of its employees~~) and the advice or any opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, entitlement, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 4 contracts

Samples: Trust Agreement (Partnerre LTD), Trust Agreement (Partnerre LTD), Trust Agreement (Partnerre LTD)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (bii) ~~if (i) in performing its duties under~~ any direction or act of the Sponsor or the Administrative Trustees contemplated by this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or may be sufficiently evidenced by an Officers’ Certificate; (iii) whenever in the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms administration of this Trust Agreement, the Property Trustee shall ~~deliver~~ deem it desirable that a ~~notice to the Depositor requesting the Depositor’s written instruction as to the course of action to~~ matter be ~~taken and the Property Trustee shall take such action,~~ proved or ~~refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from~~ established before taking, ~~by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice~~ suffering or ~~such reasonably shorter period of time set forth in such notice~~omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, ~~but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and~~ in the ~~best interests~~ absence of ~~the Holders, in which event the Property Trustee shall have no liability except for its own negligence,~~ bad faith ~~or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by~~ on its part, request and conclusively rely upon an Officers’ Certificate ~~unless otherwise expressly provided herein~~which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Administrative Trustees; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees, and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ fees and ~~expenses~~expenses and the expenses of the Property Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided, however, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee’s or its agent’s taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in ~~Liquidation Amount~~ liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxii) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that a matter~~ not be ~~proved or established prior to taking, suffering or omitting~~ liable for any action ~~hereunder~~taken, suffered, or omitted to be taken by it in good faith, without negligence or willful misconduct, and reasonably believed by it to be authorized or within the ~~Property Trustee~~ discretion or rights or powers conferred upon it by this Trust Agreement. (~~unless other evidence be herein specifically prescribed~~b) ~~may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor.~~ No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Webster Capital Trust Vi), Trust Agreement (Webster Capital Trust VII), Trust Agreement (Webster Capital Trust Vi)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (diii) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Sponsor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor or any~~ of its ~~Affiliates, and may include any of its employees)~~ choice or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ ' fees and ~~expenses~~expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided that, nothing contained in this Section 3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder, provided that such agent, custodian, nominee or attorney is a United States Person as defined in Section 7701(a)(30) of the Code; (jix) any authorized or required action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities which instructions may only be given by the Holders of the same proportion in ~~Liquidation Amount~~ liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (lxii) the Property Trustee shall not be liable for any action taken, suffered or omitted to be taken by it without negligence or willful misconduct, in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Trust Agreement; (xiii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a ~~Bankruptcy Event~~bankruptcy, such expenses (including ~~legal~~ the fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxiv) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that~~ not be charged with knowledge of a ~~matter be proved or established prior to taking, suffering or omitting any action hereunder,~~ Trust Enforcement Event unless a Responsible Officer of the Property Trustee ~~(unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt~~ obtains actual knowledge of such ~~request, shall be promptly delivered by~~ event or the ~~Depositor.~~ Property Trustee receives written notice of such event from Holders holding more than a Majority in Liquidation Amount of the Capital Securities; (b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Compass Bancshares Inc), Trust Agreement (Us Bancorp \De\), Trust Agreement (Compass Trust Iii)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as 42 37 to which the ~~Holders of the Preferred Securities~~ Capital Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, 43 38 but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive written instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request written instructions from the Holders (of the Trust Securities which written instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such written instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Chase Capital Iii), Trust Agreement (Chase Capital Iii), Trust Agreement (Chase Capital Ix)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or ~~transferee~~transferee such as of a certificate presented for transfer, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if no Event of Default has occurred and is continuing and, (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of ~~the~~ Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate and an Opinion of Counsel which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to ~~see to~~ accomplish any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel at the Depositor's expense (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity satisfactory to it against the costs, expenses (including ~~reasonable~~ attorneys’ ' fees and ~~expenses~~expenses and the expenses of the Property Trustee's agents, custodians or nominees) and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any ~~resolution~~resolutions, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property Trustee may make such further inquiry or investigation into such facts or custodian or nominee matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, ~~attorneys,~~ custodians or ~~nominees and~~ nominees, attorneys or an Affiliate, provided that the Property Trustee shall not be responsible for ~~any~~ the negligence or ~~misconduct~~ recklessness on the part of any ~~such~~ agent, attorney, custodian or nominee appointed by it with due care ~~by it~~ hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities, which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in conclusively relying on or acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) ~~without prejudice to any other rights available to~~ the Property Trustee ~~under applicable law~~shall not be liable for any action taken, ~~when~~ suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the ~~Property Trustee incurs expenses~~ discretion or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law rights or ~~law relating to creditors rights generally~~powers conferred upon it by this Trust Agreement; and (m) ~~whenever~~ in the ~~administration of this Trust Agreement~~ event that the Property Trustee ~~shall deem it desirable that~~ is also acting as a ~~matter be proved or established prior to taking~~Paying Agent, ~~suffering or omitting any action~~ Conversion Agent, and/or Securities Registrar hereunder, the rights and protections afforded to the Property Trustee ~~(unless other evidence~~ pursuant to this Article 8 shall also be ~~herein specifically prescribed) may~~afforded to such Paying Agent, ~~in the absence of bad faith on its part~~Conversion Agent, ~~request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor~~and/or Securities Registrar. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Merger Agreement (Capital Senior Living Corp), Merger Agreement (Ilm Ii Senior Living Inc /Va), Merger Agreement (Ilm Senior Living Inc /Va)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor or the Guarantor contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officers’~~ Officer’s Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or the Guarantor or any of ~~its~~ the Depositor’s or the Guarantor’s Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any ~~bankruptcy law~~ Bankruptcy Law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an ~~Officers’~~ Officer’s Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 4 contracts

Samples: Trust Agreement (Northstar Realty), Trust Agreement (Northstar Realty), Trust Agreement (Northstar Realty)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.09 hereof: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof upon~~ upon, any ~~resolution~~Officers’ Certificate, ~~Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or~~ any ~~other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) ~~in construing~~ any direction, request, order or demand of the ~~provisions of this Trust Agreement~~ Sponsor or the ~~Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure~~ Regular Trustees acting on behalf of the ~~application of any provision of this~~ Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this ~~Trust~~ Agreement shall be sufficiently evidenced by an Officers’ Certificate (unless ~~otherwise expressly provided herein~~other evidence in respect thereof be herein specifically prescribed); (diii) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this ~~Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e)~~ Agreement, the Property Trustee shall ~~have no duty to see to~~ deem it desirable that a matter be proved or established before taking, suffering or omitting any ~~recording~~action hereunder, ~~filing~~ such matter (unless other evidence is herein specifically prescribed), may, in the absence of negligence or ~~registration~~ bad faith on the part of ~~any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f)~~ the Property ~~Trustee may consult with counsel (which counsel may~~ Trustee, be ~~counsel~~ deemed to be conclusively proved and established by an Officers’ Certificate delivered to the Property Trustee, and such Officers’ Certificate, in the ~~Depositor~~ absence of negligence or bad faith on the part of the Property Trustee, shall be full warrant to the Property Trustee for any action taken, suffered or omitted to be taken by it under the provisions of ~~its Affiliates~~this Agreement upon the faith thereof; (iv) the Property Trustee may, ~~and may include any~~ at the expense of ~~its employees)~~ the Bank, consult with counsel or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice~~advice or opinion; such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (gv) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any Holder of the ~~Holders pursuant to this~~ Trust ~~Agreement~~Securities, unless (a) such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the fees, charges, costs, expenses (including ~~reasonable~~ attorneys’ fees and ~~expenses~~expenses and the expenses of the Property Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee and (b) the Property Trustee has obtained the legal opinion, if any, required by Section 8.05(g) or Section 8.06(b) hereof, as the case may be; provided, that nothing contained in this Section 3.10(a)(v) shall be taken to relieve the Property Trustee, upon the occurrence of an Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Agreement; (hvi) prior to the occurrence of any Enforcement Event and after the curing or waiving of all Enforcement Events, the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, unless requested in writing to do so by ~~one or more Holders,~~ a Majority of Trust Securities affected (voting as a single class) but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see ~~fit, and, if the Property Trustee~~ fit but shall ~~determine to make~~ incur no liability or additional liability of any kind by reason of such inquiry or investigation~~, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney~~; (ivii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such~~ agent, ~~attorney~~custodian, ~~custodian~~ nominee or ~~nominee~~ attorney appointed with due care by it hereunder; (jviii) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Trust Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Agreement, both of which shall be conclusively evidenced by the Property Trustee’s or its agent’s taking such action; (ix) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request written instructions from the ~~Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount~~ Majority or Other Stated Percentage of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions~~; (k) except as otherwise expressly provided by this Trust Agreement~~; provided, however, that the Property Trustee shall not be ~~under any obligation~~ required to take any action unless it shall have obtained such legal opinions, if any, required by Section 8.05(g) or Section 8.06(d) hereof, as the case may be; and In the event that the Property Trustee is ~~discretionary under~~ also acting as Authenticating Agent, Paying Agent, Transfer Agent and/or Registrar, the ~~provisions of this Trust Agreement; (l) without prejudice to any other~~ rights ~~available~~ and protections afforded to the Property Trustee ~~under applicable law~~pursuant to this Article 3 shall also be afforded to such Authenticating Agent, ~~when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event~~Paying Agent, ~~such expenses (including legal fees~~ Transfer Agent and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; andRegistrar. (mb) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this ~~Trust~~ Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Deutsche Bank Aktiengesellschaft), Trust Agreement (Deutsche Bank Capital Funding Trust VIII), Trust Agreement (Deutsche Bank Contingent Capital LLC II)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Depositor and the Property Trustee shall be fully protected in acting in accordance with such instructions; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Ace Ina Holdings Inc), Trust Agreement (Lincoln National Corp), Trust Agreement (Ace Ina Holdings Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Depositor and the Property Trustee shall be fully protected in acting in accordance with such instructions; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two (2) Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Trenwick America Capital Trust Iii), Trust Agreement (Trenwick America Capital Trust Iii), Trust Agreement (Ace LTD)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, ~~Opinion~~ opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Declaration of Trust ~~Agreement~~ the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Declaration of Trust ~~Agreement~~ the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this ~~Trust Agreement~~Declaration of Trust, then, except as to any matter as to which the ~~Holders of the Preferred Securities~~ Securityholders are entitled to vote under the terms of this ~~Trust Agreement~~Declaration of Trust, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken~~ taken, and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which, to the ~~Property Trustee~~ extent practicable, shall not be less than two Business Days), it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Declaration of Trust as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustee contemplated by this Declaration of Trust ~~Agreement~~ shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) whenever in the administration of this Declaration of Trust, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any ~~direction or act~~ action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Administrative Trustee contemplated by this Trust Agreement~~ Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative Trustees (which Officers' Certificate will be evidence only for purposes of determining entitlement to indemnification of the Property Trustee ~~and setting forth such direction or act~~from the Depositor but not with respect to any liability to Securityholders); (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) ), and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance ~~thereon and~~ thereon, and, in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Declaration of Trust ~~Agreement~~ from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Declaration of Trust ~~Agreement~~ at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this ~~Trust Agreement~~Declaration of Trust, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of ~~the~~ its trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees~~ and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of of, or for the supervision of, any such ~~agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed by it with due care ~~by it~~ hereunder; (j) whenever in the administration of this Declaration of Trust ~~Agreement~~ the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities, which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this ~~Trust Agreement~~Declaration of Trust, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this ~~Trust Agreement~~Declaration of Trust; (l) ~~without prejudice to any other rights available to the Property Trustee under applicable law,~~ when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including ~~legal~~ the fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to ~~creditors~~ creditors' rights generally; and (m) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that~~ not be charged with knowledge of an Event of Default unless a ~~matter be proved or established prior to taking, suffering or omitting any action hereunder,~~ Responsible Officer of the Property Trustee ~~(unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt~~ obtains actual knowledge of such ~~request, shall be promptly delivered by~~ event or the ~~Depositor~~Property Trustee receives written notice of such event from Securityholders holding at least 25% of the Outstanding Trust Securities (based upon Liquidation Amount). No provision of this Declaration of Trust ~~Agreement~~ shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Declaration of Trust (Resource Capital Trust I), Declaration of Trust (Highlands Capital Trust I), Declaration of Trust (Guaranty Capital Trust I)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document (whether in its original or facsimile form) believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any ~~provision~~ Provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the Preferred Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem ~~advisable and in the best interests of the Holders~~advisable, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see ~~fit, and, if~~ fit at the ~~Property Trustee~~ expense of the Depositor and shall ~~determine to make~~ incur no liability of any kind by reason of such inquiry or and investigation~~, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney~~; (i) the Property Trustee may execute any of ~~the~~ its trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees~~ and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of or for the supervision of any such ~~agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed by it with due care ~~by it~~ hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with ~~such~~ instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) ~~without prejudice to any other rights available to the Property Trustee under applicable law,~~ when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including ~~legal~~ the fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that~~ not be charged with knowledge or an Event of Default unless a ~~matter be proved or established prior to taking, suffering or omitting any action hereunder,~~ Responsible Officer of the Property Trustee ~~(unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt~~ obtains actual knowledge of such ~~request~~event or the Property Trustee receives written notice of such event from Securityholders holding at least 25%, ~~shall be promptly delivered by~~ of the ~~Depositor~~Outstanding Trust Securities (based upon Liquidation Amount). No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Bancorpsouth Inc), Trust Agreement (Bancorpsouth Inc), Trust Agreement (Bancorpsouth Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the Preferred Securities~~ Capital Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers’ Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive written instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request written instructions from the Holders (of the Trust Securities which written instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such written instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (J P Morgan Chase & Co), Trust Agreement (JPMorgan Chase Capital XVI), Trust Agreement (JPMorgan Chase Capital XVI)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(e) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 4 contracts

Samples: Trust Agreement (Aici Capital Trust), Trust Agreement (Gold Banc Corp Inc), Trust Agreement (Aici Capital Trust)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5:~~8.01. (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if if, other than during the occurrence and continuance of an Event of Default, (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel or other experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdictionthereon; (gd) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (he) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, ; and~~, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney;~~ (if) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents, attorneys, custodians~~ agents or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 3 contracts

Samples: Trust Agreement (Usf&g Corp), Trust Agreement (Usf&g Corp), Trust Agreement (Usf&g Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or re-registration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may~~ ; provided that nothing contained in this Section 8.3(e) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Southern Community Bancshares Inc /Ga), Trust Agreement (Peoples Bancorp of North Carolina Inc), Trust Agreement (CCF Holding Co)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor~~’s written instruction~~ 's opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Compass Trust Ii), Trust Agreement (Banponce Corp), Trust Agreement (Banponce Trust Ii)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if if, (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officers’ Certificate unless otherwise expressly provided herein~~Officer's Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer's Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees)~~ and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; , such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees~~ and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of or for the supervision of, any such ~~agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement;; and (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall ~~deem it desirable that~~ not be charged with knowledge of an Event of Default unless a ~~matter be proved or established prior to taking, suffering or omitting any action hereunder,~~ Responsible Officer of the Property Trustee ~~(unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt~~ obtains actual knowledge of such ~~request~~event or the Property Trustee receives written notice of such event from any Securityholder, ~~shall be promptly delivered by~~ the ~~Depositor~~Depositor or the Debenture Trustee. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Chubb Capital Trust Iii), Trust Agreement (Chubb Capital Trust Iii), Trust Agreement (Chubb Capital Trust Iii)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (diii) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Sponsor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor or any~~ of its ~~Affiliates, and may include any of its employees)~~ choice or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Property Trustee or the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ ' fees and ~~expenses~~expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided that, nothing contained in this Section 3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement in the manner provided by Section 3.9(a); (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the ~~Trust~~ Securities as would be been entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (lxii) the Property Trustee shall not be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Trust Agreement, except if such breach or failure is due to any gross negligence or willful misconduct of the Property Trustee.; (xiii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a ~~Bankruptcy Event~~bankruptcy, such expenses (including ~~legal~~ the reasonable fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; (xiv) the Property Trustee shall not be charged with knowledge of a Trust Enforcement Event unless a Responsible Officer of the Property Trustee obtains actual knowledge of such event or the Property Trustee receives written notice of such event from Holders holding more than a Majority in Liquidation Amount of the Trust Preferred Securities; and (mb) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Dominion CNG Capital Trust Ii), Trust Agreement (Dominion Resources Inc /Va/), Trust Agreement (Consolidated Natural Gas Co/Va)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee from exercising its rights under Section 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 3 contracts

Samples: Trust Agreement (Bresler & Reiner Inc), Trust Agreement (Capital Trust Inc), Trust Agreement (Capital Trust Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive written instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request written instructions from the Holders (of the Trust Securities which written instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such written instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (First Tennessee Capital Iv), Trust Agreement (First Tennessee Capital Iv), Trust Agreement (First Tennessee Capital Iv)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (diii) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers’ Certificate and an opinion of counsel which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Sponsor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor or any~~ of its ~~Affiliates, and may include any of its employees)~~ choice or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice~~advice or opinion; such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ fees and ~~expenses~~expenses and the expenses of the Property Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided that, nothing contained in this Section 3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event or an ICONs Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder, provided that such agent, custodian, nominee or attorney is a United States Person as defined in Section 7701(a)(30) of the Code; (jix) any authorized or required action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action. No third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee’s or its agent’s taking such action; (x) whenever in the administration of this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request written instructions from the Holders (of the Securities, which instructions may only be given by the Holders of the same proportion in ~~Liquidation Amount~~ liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be fully protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (lxii) the Property Trustee shall not be liable for any action taken, suffered or omitted to be taken by it without negligence or willful misconduct, in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Trust Agreement; (xiii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a ~~Bankruptcy Event~~bankruptcy, such expenses (including ~~legal~~ the fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxiv) ~~whenever in~~ the Property Trustee shall not be charged with knowledge of a Trust Enforcement Event or an ICONs Default unless a Responsible Officer of the Property Trustee charged with the administration of this Trust Agreement obtains actual knowledge of such event or the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt receives written notice of such ~~request, shall be promptly delivered by~~ event from Holders holding more than a Majority in Liquidation Amount of the ~~Depositor.~~ Capital Securities; (b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Merrill Lynch & Co Inc), Trust Agreement (Merrill Lynch & Co Inc), Trust Agreement (Merrill Lynch Capital Trust III)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if if, (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officers’ Certificate unless otherwise expressly provided herein~~Officer's Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer's Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees)~~ and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; , such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees~~ and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of or for the supervision of, any such ~~agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement;; and (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall ~~deem it desirable that~~ not be charged with knowledge of an Event of Default unless a ~~matter be proved or established prior to taking, suffering or omitting any action hereunder,~~ Responsible Officer of the Property Trustee ~~(unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt~~ obtains actual knowledge of such ~~request~~event or the Property Trustee receives written notice of such event from any Securityholder, ~~shall be promptly delivered by~~ the ~~Depositor~~Depositor or the Debenture Trustee. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Principal Financial Group Inc), Trust Agreement (Principal Financial Group Inc), Trust Agreement (Principal Financial Group Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; , such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees;the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(e) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (S&t Bancorp Inc), Trust Agreement (PNC Capital Trust F), Trust Agreement (M&t Bank Corp)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~appraisal,~~ bond, ~~debenture~~ICON, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (diii) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers’ Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Sponsor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor or any~~ of its ~~Affiliates, and may include any of its employees)~~ choice or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice~~advice or opinion; such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ fees and ~~expenses~~expenses and the expenses of the Property Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided that, nothing contained in this Section 3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, ~~debenture~~ICON, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder, provided that such agent, custodian, nominee or attorney is a United States Person as defined in Section 7701(a)(30) of the Code; (jix) any authorized or required action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee’s or its agent’s taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities, which instructions may only be given by the Holders of the same proportion in ~~Liquidation Amount~~ liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (lxii) the Property Trustee shall not be liable for any action taken, suffered or omitted to be taken by it without negligence or willful misconduct, in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Trust Agreement; (xiii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a ~~Bankruptcy Event~~bankruptcy, such expenses (including ~~legal~~ the fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxiv) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that~~ not be charged with knowledge of a ~~matter be proved or established prior to taking, suffering or omitting any action hereunder,~~ Trust Enforcement Event unless a Responsible Officer of the Property Trustee ~~(unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt~~ obtains actual knowledge of such ~~request, shall be promptly delivered by~~ event or the ~~Depositor.~~ Property Trustee receives written notice of such event from Holders holding more than a Majority in Liquidation Amount of the Capital Securities; (b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Us Bancorp \De\), Trust Agreement (Us Bancorp \De\), Trust Agreement (Us Bancorp \De\)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Trust Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor~~’s written instruction~~ 's opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 3 contracts

Samples: Trust Agreement (Indymac Capital Trust I), Trust Agreement (Indymac Capital Trust I), Trust Agreement (Indymac Capital Trust I)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, judgment, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document (including e-mail, facsimile or other electronic transmission) believed by it to be genuine and to have been signed or presented by the proper ~~party~~ Person or ~~parties~~Persons (without being required to determine the correctness of any fact stated therein); (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Trust Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s ~~written instruction~~ opinion as to the course of action to be ~~taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor~~taken; provided, however, that if the ~~Property Trustee does not receive~~ Depositor fails to deliver such ~~instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice~~opinion, the Property Trustee ~~may, but shall be under no duty to,~~ may take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the ~~best~~ interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trust (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers’ Certificate that, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such Administrative Trustee and setting forth such direction or act~~the Depositor; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel of its own selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees~~ and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any such ~~agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 3 contracts

Samples: Trust Agreement (National City Corp), Trust Agreement (National City Corp), Trust Agreement (National City Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01 and except as provided by law: (ai) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (bii) if (iA) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (iiB) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (~~iii~~C) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the Preferred Securities~~ Capital Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on upon an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; (iv) the Property Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (v) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Securityholder pursuant to this Trust Agreement, unless such Securityholder shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys' fees and expenses) and liabilities which might be incurred by it in complying with such request or direction; (vi) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor personally or by agent or attorney; (vii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (viii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (ix) the Property Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Trust Securities unless either (A) a Responsible Officer of the Property Trustee shall have actual knowledge of the default or Event of Default or (B) written notice of such default or Event of Default shall have been given to the Property Trustee by the Depositor~~. No~~ , the Administrative Trustees or by any Holder of the Trust Securities; (x) no provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on ~~it,~~ it in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or ~~acts,~~ acts or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty; (xi) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it; (xii) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any tax or securities form) (or any rerecording, refiling or registration thereof); (xiii) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; and (xiv) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (A) may request instructions from the Holders of the Trust Securities, which instructions may only be given by the Holders of the same Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such remedies, rights or actions, (B) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (C) shall be protected in acting in accordance with such instructions.

Appears in 3 contracts

Samples: Trust Agreement (Texas Utilities Electric Co), Trust Agreement (Texas Utilities Co /Tx/), Trust Agreement (Texas Utilities Electric Co)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~VIII.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if if, other than during the occurrence and continuance of an Event of Default, (i) in performing its duties under this Trust ~~Agreement~~ Agreement, the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Depositor and the Property Trustee shall be fully protected in acting in accordance with such instructions; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Cna Financial Capital Iii), Trust Agreement (Cna Financial Capital Iii), Trust Agreement (Cna Financial Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, ~~debenture~~Note, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Trust Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, ~~debenture~~Note, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any ~~bankruptcy law~~ Bankruptcy Law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 3 contracts

Samples: Trust Agreement (Temecula Valley Bancorp Inc), Trust Agreement (Temecula Valley Bancorp Inc), Trust Agreement (First Chester County Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01 and except as provided by law, including the Trust Indenture Act: (ai) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) whenever in ~~construing any of~~ the ~~provisions~~ administration of this Trust Agreement the Property Trustee ~~finds~~ shall deem it desirable that a ~~provision ambiguous~~ matter be proved or ~~inconsistent with~~ established prior to taking, suffering or omitting any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreementaction hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officer's Certificate which, upon receipt of such request, shall ~~deliver a notice to~~ be promptly delivered by the Depositor ~~requesting~~ or the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconductAdministrative Trustees; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (fiii) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to the Property Trustee, Depositor or the ~~Depositor~~ Trust Securities Guarantor or any of ~~its~~ their Affiliates, and may include any of ~~its~~ their employees) and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice~~; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction~~; (giv) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders~~ Securityholder pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholder shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities ~~that~~ which might be incurred by it in ~~compliance~~ complying with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.03(iv) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hv) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the ~~Depositor,~~ Depositor personally or by agent or attorney; (ivi) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees~~ and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jvii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (viii) the Property Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Trust Securities unless either (A) a Responsible Officer of the Property Trustee shall have actual knowledge of the default or Event of Default or (B) written notice of such default or Event of Default shall have been given to the Property Trustee by the Depositor, the Administrative Trustees or by any Holder of the Trust Securities; (ix) no provision of this Trust Agreement shall be deemed to impose any duty or obligation on the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it in any jurisdiction in which it shall be illegal, or in which the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty; (x) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it; (xi) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (xii) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (iA) may request instructions from the Holders (of the Trust Securities, which instructions may only be given by the Holders of the same ~~proportion in~~ Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such ~~remedy~~remedies, ~~right~~ rights or ~~action)~~actions, (iiB) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (~~iii~~C) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxiii) ~~whenever in~~ unless otherwise expressly provided herein, any direction or act of the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered Depositor contemplated by ~~the Depositor. No provision of~~ this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligationsufficiently evidenced by an Officer's Certificate.

Appears in 3 contracts

Samples: Trust Agreement (FPL Group Trust II), Trust Agreement (Florida Power & Light CO Trust II), Trust Agreement (FPL Group Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the Preferred Securities~~ Capital Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers’ Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys~~, custodians or nominees and~~ ; provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive written instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request written instructions from the Holders (of the Trust Securities which written instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such written instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) ~~without prejudice to any other rights available to~~ in no event shall the Property Trustee ~~under applicable law~~be responsible or liable for special, ~~when~~ indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the ~~Property~~ Guarantee Trustee ~~incurs expenses~~ has been advised of the likelihood of such loss or ~~renders services in connection with a Bankruptcy Event, such expenses (including legal fees~~ damage and ~~expenses~~ regardless of ~~its agents and counsel) and~~ the ~~compensation for such services are intended to constitute expenses~~ form of ~~administration under any bankruptcy law or law relating to creditors rights generally~~action; and (m) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that~~ not be deemed to have notice of any Default or Event of Default unless a ~~matter be proved or established prior to taking, suffering or omitting any action hereunder,~~ Responsible Officer of the Property Trustee (has actual knowledge thereof or unless ~~other evidence be herein specifically prescribed) may,~~ written notice of any event which is in ~~the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of~~ fact such ~~request, shall be promptly delivered~~ a default is received by the ~~Depositor~~Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities and this Indenture. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Susquehanna Capital IV), Trust Agreement (Susquehanna Bancshares Inc), Trust Agreement (Susquehanna Bancshares Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of an Administrative Trustee, a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; ; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default (h) of which the Property Trustee ~~shall not be bound to make any investigation into the facts or matters stated~~ has knowledge (as provided in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iSection 8.6(b) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or actionhereof)), ~~(ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received~~ of its obligation to exercise the rights and ~~(iii) shall be protected~~ powers vested in ~~acting in accordance with such instructions; (k) except as otherwise expressly provided~~ it by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee ~~shall not be~~ from exercising its rights under ~~any obligation to take any action that is discretionary under the provisions of this Trust Agreement~~Section 8.11 hereof; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 3 contracts

Samples: Trust Agreement (Anthracite Capital Inc), Trust Agreement (Anthracite Capital Inc), Trust Agreement (Anthracite Capital Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee or the Delaware Trustee, as the case may be, is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s ~~written instruction~~ opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee or the Delaware Trustee, as the case may be, shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement as provided in Sections 8.1(c) and (d); (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Bb&t Corp), Trust Agreement (Bb&t Corp), Trust Agreement (Bb&t Corp)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (bii) ~~if (i) in performing its duties under~~ any direction or act of the Sponsor or the Administrative Trustees contemplated by this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or may be sufficiently evidenced by an Officers' Certificate; (iii) whenever in the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms administration of this Trust Agreement, the Property Trustee shall ~~deliver~~ deem it desirable that a ~~notice to the Depositor requesting the Depositor’s written instruction as to the course of action to~~ matter be ~~taken and the Property Trustee shall take such action,~~ proved or ~~refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from~~ established before taking, ~~by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice~~ suffering or ~~such reasonably shorter period of time set forth in such notice~~omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, ~~but~~ in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~under no duty to, take such action,~~ promptly delivered by the Sponsor or ~~refrain from taking such action, as~~ the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconductAdministrative Trustees; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees, and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ ' fees and ~~expenses~~expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided, however, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in ~~Liquidation Amount~~ liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxii) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that a matter~~ not be ~~proved or established prior to taking, suffering or omitting~~ liable for any action ~~hereunder~~taken, suffered, or omitted to be taken by it in good faith, without negligence or willful misconduct, and reasonably believed by it to be authorized or within the ~~Property Trustee~~ discretion or rights or powers conferred upon it by this Trust Agreement. (~~unless other evidence be herein specifically prescribed~~b) ~~may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor.~~ No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Webster Financial Corp), Trust Agreement (Webster Financial Corp), Trust Agreement (Webster Financial Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall ~~deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall~~ take such action, or refrain from taking such action, not inconsistent with this Trust Agreement as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Regular Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an ~~Officers’ Certificate unless otherwise expressly provided herein~~Officer's Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer's Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such Administrative Trustee and setting forth such direction~~ the Depositor or ~~act~~the Regular Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorneySecurityholders; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, attorneys, custodians or nominees ~~and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such~~ agent, attorney, custodian or nominee appointed ~~with due care~~ by it ~~hereunder~~hereunder in due care; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request written instructions from the Holders (of the Trust Securities which written instructions may only be given by the Holders of the same proportion in aggregate Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such written instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 3 contracts

Samples: Trust Agreement (Sce Trust I), Trust Agreement (Sce Trust I), Trust Agreement (Sce Trust I)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default (of which the Property Trustee has knowledge (as defined in Section 8.6(c) hereof)), of its obligation to exercise the rights and powers vested in it by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee from exercising its rights under Section 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. (n) in the event the Property Trustee is also acting as Paying Agent, Authenticating Agent (as defined in the Indenture), Securities Registrar or Calculation Agent hereunder, the rights and protections afforded the Property Trustee pursuant to this Article VIII shall also be afforded to such Paying Agent, Authenticating Agent, Securities Registrar or Calculation Agent. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Resource Capital Corp.), Trust Agreement (Resource Capital Corp.)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (diii) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Sponsor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor or any~~ of its ~~Affiliates, and may include any of its employees)~~ choice or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Property Trustee or the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ ' fees and ~~expenses~~expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the ~~Trust~~ Securities as would be been entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (lxii) the Property Trustee shall not be personally liable for the payment of any indebtedness or expenses of the Trust or be liable for the breach or failure of any obligation, representation, warranty or covenant made or undertaken by the Trust under this Trust Agreement, except if such breach or failure is due to any gross negligence or willful misconduct of the Property Trustee.; (xiii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a ~~Bankruptcy Event~~bankruptcy, such expenses (including ~~legal~~ the reasonable fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; (xiv) the Property Trustee shall not be charged with knowledge of a Trust Enforcement Event unless a Responsible Officer of the Property Trustee obtains actual knowledge of such event or the Property Trustee receives written notice of such event from Holders holding more than a Majority in Liquidation Amount of the Trust Preferred Securities; and (mb) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (CSX Capital Trust 1), Trust Agreement (Markel Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l1) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of or bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Entegra Financial Corp.), Trust Agreement (Macon Financial Corp.)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor or the Guarantor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or the Guarantor or any of ~~its~~ the Depositor’s or the Guarantor’s Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Mills Corp), Trust Agreement (Capitalsource Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, ~~certificate~~Officer’s Certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any ~~bankruptcy law~~ Bankruptcy Law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Plains Capital Corp), Trust Agreement (North State Bancorp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or re-registration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(e) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (Gbci Capital Trust Ii), Trust Agreement (First United Corp/Md/)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation or instruction of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (b) if if, (i) in performing its duties under this ~~Trust Agreement~~ Declaration the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this ~~Trust Agreement~~ Declaration the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this ~~Trust Agreement~~Declaration, then, except as to any matter as to which the Holders of ~~the~~ Preferred Securities are specifically entitled to vote under the terms of this ~~Trust Agreement~~Declaration, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Depositor and shall have no liability whatsoever for such action or inaction except for its own bad faith, negligence or willful misconduct; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such ~~reasonably~~ shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Declaration as it shall deem advisable and in the best interests of the Securityholders, in which event the Property Trustee shall have no liability except for its own bad faith, negligence or willful misconduct; (c) if a Responsible Officer of the Property Trustee has obtained actual knowledge that an Event of Default has occurred and is continuing and (i) in performing its duties under this Declaration the Property Trustee is required to decide between alternative courses of action or (ii) in construing any of the provisions in this Declaration the Property Trustee finds the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Declaration, then, except as to any matter as to which the Holders of Preferred Securities are specifically entitled to vote under the terms of this Declaration, the Property Trustee may deliver a notice to the Holders of Preferred Securities requesting written instructions of such Holders as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by a majority in interest of the Outstanding Preferred Securities and shall have no liability whatsoever for such action or inaction; provided, however, that if the Property Trustee does not receive such instructions of the Holders of Preferred Securities within ten Business Days after it has delivered such notice, or such shorter period of time set forth in such notice (which to the extent practicable shall not be less than two Business Days), it may, but shall be under no duty to, take or refrain from taking such action not inconsistent with this Declaration as it shall deem advisable and in the best interests of ~~the~~ such Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct~~; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein~~; (d) any direction or act of an the Depositor or the Administrative ~~Trustee~~ Trustees contemplated by this ~~Trust Agreement~~ Declaration shall be sufficiently evidenced by an Officer's Certificate and any resolution of the Board of Directors may be sufficiently evidenced by a ~~certificate executed by such Administrative Trustee and setting forth such direction or act~~Board Resolution; (e) whenever in the administration of this Declaration, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officer's Certificate and an Opinion of Counsel which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; (f) the Property Trustee shall have no duty to ~~see to~~ accomplish any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (fg) the Property Trustee may consult with counsel and other experts of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice or opinion of such counsel and experts or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such ~~advice~~advice or opinion; and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust Agreement~~ Declaration from any court of competent jurisdiction; (gh) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust Agreement~~ Declaration at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this ~~Trust Agreement~~Declaration, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ ' fees and ~~expenses~~expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction, including such reasonable advances as may be requested by the Property Trustee; (hi) the Property Trustee shall not be bound to make ~~any~~ an investigation into the facts or matters stated in any ~~resolution~~resolutions, certificate, statement, instrument, opinion, report, notice, request, consent, direction~~, consent~~, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless specifically requested and directed in writing to do so by ~~one~~ Holders of record of 25% or more ~~Holders~~of the Preferred Securities (based upon their aggregate Liquidation Amount), but the Property Trustee may in its discretion make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ij) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees and~~ attorneys or an Affiliate, provided that the Property Trustee shall be responsible for its own negligence with respect to the selection of any agent or attorney appointed by it hereunder but shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of ~~any~~ such ~~agent, attorney, custodian or nominee appointed with due care by it hereunder~~Person; (jk) whenever in the administration of this ~~Trust Agreement~~ Declaration the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; (kl) except as otherwise expressly provided by this ~~Trust Agreement~~Declaration, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generallyDeclaration; and (m) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that a matter~~ not be ~~proved or established prior to taking, suffering or omitting~~ liable for any action ~~hereunder~~taken, suffered or omitted to be taken by it in good faith, without negligence or willful misconduct, and reasonably believed by it to be authorized or within the ~~Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which,~~ discretion or rights or powers conferred upon ~~receipt of such request, shall be promptly delivered~~ it by ~~the Depositor~~this Declaration. No provision of this ~~Trust Agreement~~ Declaration shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or ~~acts~~ acts, or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Declaration of Trust (Superior Trust I), Declaration of Trust (Superior Trust I)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: : (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; ; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.44

Appears in 2 contracts

Samples: Trust Agreement (Simmons First National Corp), Trust Agreement (Simmons First National Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~7.01: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if if, other than during the occurrence and continuance of an Event of Default, (i) in performing its duties under this Trust ~~Agreement~~ Agreement, the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust ~~Agreement~~ Agreement, the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Trust Preferred Security Holders ~~of the Preferred Securities~~ are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than five Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~negligent action, ~~bad faith~~ its own negligent failure to act or its own willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel or other experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdictionthereon; (gd) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (he) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, ; and~~, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney;~~ (if) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents, attorneys, custodians~~ agents or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Hawaiian Electric Co Inc), Trust Agreement (Maui Electric Co LTD)

Certain Rights of Property Trustee. Subject to the provisions ---------------------------------- of ~~Section 8.5~~SECTION 8.2: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any resolution, ~~Opinion of Counsel~~opinion, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of ~~the Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee ~~shall be~~ is instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee shall deem~~ it deems advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate ~~unless otherwise expressly provided herein~~or an instrument signed by the requisite number of Administrative Trustees, as the case may be; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee deems it desirable that a matter be proved or established before taking, suffering or omitting to take any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice or opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance ~~thereon and in accordance with such advice~~thereon; the Property Trustee shall have the right at any time to seek instructions concerning the administration of the Trust or interpretation of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders shall~~ Securityholders have offered to the Property Trustee ~~reasonable~~ such adequate security or indemnity against the costs, expenses (including ~~reasonable attorneys’~~ attorney's fees and expenses) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its agents, attorneys, custodians~~ agents or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee ~~shall deem~~ deems it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) ~~without prejudice to any other rights available to~~ the Property Trustee ~~under applicable law, when~~ shall not be charged with knowledge of an Event of Default unless either (i) a Responsible Officer of the Property Trustee ~~incurs expenses~~ assigned to its Corporate Trust Department (or ~~renders services in connection with~~ any successor department or division of the Property Trustee) located at the Corporate Trust Office shall have actual knowledge of such Event of Default or (ii) the Property Trustee receives at the Corporate Trust Office written notice of such event from the Depositor, any other Trustee or Securityholders holding a ~~Bankruptcy Event, such expenses~~ majority or more of Capital Securities (~~including legal fees and expenses of its agents and counsel~~based upon Liquidation Amount) and such notice references the ~~compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and~~Trust Securities and this Trust Agreement; (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No no provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it ~~shall be~~ is illegal, or in which ~~such Person shall be~~ the Property Trustee is unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation; (n) no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty to act in accordance with such power and authority; (o) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request of direction of any of the Securityholders pursuant to this Trust Agreement, unless such Securityholders shall have offered the Property Trustee reasonable security or indemnity against the costs, expenses and liabilities which might be incurred by it in compliance with such request or direction; (p) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any tax or securities) (or any re-recording, refiling or registration thereof); (q) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (r) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedies or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Trust Securities, which instructions may only be given by the Holders of the same Liquidation Amount of Trust Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such remedies, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be fully protected in acting in accordance with such instructions; (s) the rights, privileges, protections, immunities, and benefits given to the Property Trustee, including, without limitation, its right to be indemnified , are extended to, and shall be enforceable by, the Property Trustee in each of its capacities hereunder, and to each agent, custodian and other Person employed to act hereunder; (t) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon by this Trust Agreement; and (u) the Property Trustee may request that the Depositor deliver an Officers' Certificate setting forth the names of officers authorized at such time to take specified actions pursuant to this Trust Agreement, which Officers' Certificate may be signed by any person authorized to sign an Officers' Certificate, including any person specified as so authorized in any such certificate previously delivered and not superseded.

Appears in 2 contracts

Samples: Trust Agreement (DPL Inc), Trust Agreement (DPL Inc)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this ~~Trust~~ Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (diii) whenever in the administration of this Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any ~~direction or act~~ action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an ~~Administrative Trustee contemplated by this Trust Agreement~~ Officers’ Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including ~~reasonable~~ attorneys’ fees and ~~expenses~~expenses and the expenses of the Property Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Agreement, both of which shall be conclusively evidenced by the Property Trustee’s or its agent’s taking such action; (x) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities which instructions may only be given by the Holders of the same proportion in ~~Liquidation Amount~~ liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in accordance with such instructions; (kxi) except as otherwise expressly provided by this ~~Trust~~ Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this ~~Trust~~ Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxii) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that a matter~~ not be ~~proved or established prior to taking, suffering or omitting~~ liable for any action ~~hereunder~~taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the ~~Property Trustee~~ discretion or rights or powers conferred upon it by this Agreement (~~unless other evidence be herein specifically prescribed~~b) ~~may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor.~~ No provision of this ~~Trust~~ Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement, Trust Agreement (Allstate Financing X)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (bii) ~~if (i) in performing its duties under~~ any direction or act of the Company or the Administrative Trustees contemplated by this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or may be sufficiently evidenced by an Officers’ Certificate; (iii) whenever in the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms administration of this Trust Agreement, the Property Trustee shall ~~deliver~~ deem it desirable that a ~~notice to the Depositor requesting the Depositor’s written instruction as to the course of action to~~ matter be ~~taken and the Property Trustee shall take such action,~~ proved or ~~refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from~~ established before taking, ~~by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice~~ suffering or ~~such reasonably shorter period of time set forth in such notice~~omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, ~~but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and~~ in the ~~best interests~~ absence of ~~the Holders, in which event the Property Trustee shall have no liability except for its own negligence,~~ bad faith ~~or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by~~ on its part, request and conclusively rely upon an Officers’ Certificate ~~unless otherwise expressly provided herein~~which, upon receipt of such request, shall be promptly delivered by the Company or the Administrative Trustees; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Company or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, satisfactory to the Property Trustee, against the costs, expenses (including ~~reasonable~~ attorneys’ fees and ~~expenses~~expenses and the expenses of the Property Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including ~~reasonable~~ such advances as may be requested by the Property Trustee; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee’s or its agent’s taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (lxii) ~~without prejudice to any other rights available to~~ the Property Trustee ~~under applicable law~~shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith, without gross negligence, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (xiii) when the Property Trustee incurs expenses or renders services in connection with ~~a Bankruptcy Event~~an Event of Default under Sections 5.01(d) or 5.01(e) of the Indenture, such expenses (including ~~legal~~ the fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; (xiv) in no event shall the Property Trustee be liable for the selection of investments or for investment losses incurred thereon. The Property Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any such investment prior to its stated maturity or the failure of the party directing such investment to provide timely written investment direction. The Property Trustee shall have no obligation to invest or reinvest any amounts held hereunder in the absence of such written investment direction; and (mxv) ~~whenever~~ in the ~~administration of this Trust Agreement~~ event that the Property Trustee ~~shall deem it desirable that a matter be proved~~ is also acting as Paying Agent, Registrar or ~~established prior to taking, suffering or omitting any action~~ exchange agent hereunder, the rights and protections afforded to the Property Trustee pursuant to this Article Three shall also be afforded to such Paying Agent, Registrar or exchange agent. (~~unless other evidence be herein specifically prescribed~~b) ~~may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor.~~ No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (Nexity Financial Corp), Trust Agreement (Waccamaw Bankshares Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Trust Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity reasonably satisfactory to it against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or ~~attorney~~attorney at the expense of the Depositor and shall incur no liability of any kind by reason of such inquiry or investigation; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to to, creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. . (n) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. (o) the Trustee shall not be deemed to have notice of any Default or ICON Event of Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default by the Trustee at the Corporate Trust Office of the Trustee, and such notice references the Securities in this Indenture. (p) The rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder.

Appears in 2 contracts

Samples: Trust Agreement (National City Corp), Trust Agreement (National City Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the Preferred Securities~~ Capital Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (TCF Capital I), Trust Agreement (Downey Financial Capital Trust I)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (diii) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers’ Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Sponsor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-~~registration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor or any~~ of its ~~Affiliates, and may include any of its employees)~~ choice or other experts and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts’ area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ fees and ~~expenses~~expenses and the expenses of the Property Trustee’s agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided that, nothing contained in this Section 3.10(a) shall be taken to relieve the Property Trustee, upon the occurrence of a Trust Enforcement Event, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder, provided that such agent, custodian, nominee or attorney is a United States Person as defined in Section 7701(a)(30) of the Code; (jix) any authorized or required action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee’s or its agent’s taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities which instructions may only be given by the Holders of the same proportion in ~~Liquidation Amount~~ liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (lxii) the Property Trustee shall not be liable for any action taken, suffered or omitted to be taken by it without negligence or willful misconduct, in good faith and reasonably believed by it to be authorized or within the discretion, rights or powers conferred upon it by this Trust Agreement; (xiii) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a ~~Bankruptcy Event~~bankruptcy, such expenses (including ~~legal~~ the fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxiv) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that~~ not be charged with knowledge of a ~~matter be proved or established prior to taking, suffering or omitting any action hereunder,~~ Trust Enforcement Event unless a Responsible Officer of the Property Trustee ~~(unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt~~ obtains actual knowledge of such ~~request, shall be promptly delivered by~~ event or the ~~Depositor.~~ Property Trustee receives written notice of such event from Holders holding more than a Majority in Liquidation Amount of the Capital Securities; (b) No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (Us Bancorp \De\), Trust Agreement (USB Capital XII)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of an Administrative Trustee, a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; ; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default (h) of which the Property Trustee ~~shall not be bound to make any investigation into the facts or matters stated~~ has knowledge (as provided in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iSection 8.6(b) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or actionhereof)), ~~(ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received~~ of its obligation to exercise the rights and ~~(iii) shall be protected~~ powers vested in ~~acting in accordance with such instructions; (k) except as otherwise expressly provided~~ it by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee ~~shall not be~~ from exercising its rights under ~~any obligation to take any action that is discretionary under the provisions of this Trust Agreement~~Section 8.11 hereof; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Redwood Trust Inc), Trust Agreement (Lexington Realty Trust)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (~~b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (~~ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a ~~certificate executed by such Administrative Trustee and setting forth such direction~~ Direction or ~~act~~an Officers' Certificate; (eiii) whenever, in the administration of this Agreement, the Property Trustee shall deem it desirable that a matter be proved or established before taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be promptly delivered by the Sponsor or the Administrative Trustees; (iv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, it being understood that such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this ~~Trust~~ Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this ~~Trust~~ Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including ~~reasonable~~ attorneys’ ' fees and ~~expenses~~expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see ~~fit,~~ fit and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the ~~Depositor~~Company, personally or by agent or ~~attorney~~attorney at the sole cost of the Company and shall incur no liability or additional liability of any kind by reason of such inquiry or investigation; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this ~~Trust~~ Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities which instructions may only be given by the Holders of the same proportion in ~~Liquidation Amount~~ liquidation amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in conclusively relying on or acting in accordance with such instructions; (kxi) except as otherwise expressly provided by this ~~Trust~~ Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this ~~Trust~~ Agreement. (xii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith, without negligence, and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Agreement; (lxiii) ~~without prejudice to any other rights available to the Property Trustee under applicable law,~~ when the Property Trustee incurs expenses or renders services in connection with ~~a Bankruptcy Event~~an Event of Default under the Indenture, such expenses (including ~~legal~~ the fees and expenses of its ~~agents and~~ counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; (xiv) in the event that the Property Trustee is also acting as Paying Agent hereunder, the rights and protections afforded to the Property Trustee pursuant to this Article III shall also be afforded to such Paying Agent; (xv) in no event shall the Property Trustee be responsible or liable for special, indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Property Trustee has been advised of the likelihood of such loss or damage and regardless of the form of action; and (mxvi) ~~whenever in~~ the ~~administration of this Trust Agreement~~ rights, privileges, protections, immunities and benefits given to the Property ~~Trustee~~ Trustee, including, without limitation, its right to be indemnified, are extended to, and shall ~~deem it desirable that a matter~~ be ~~proved or established prior to taking, suffering or omitting any action hereunder~~enforceable by, the Property Trustee in each of its capacities hereunder, and each agent, custodian and other Person employed to act hereunder. (~~unless other evidence be herein specifically prescribed~~b) ~~may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor.~~ No provision of this ~~Trust~~ Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (Berkley W R Corp), Trust Agreement (Berkley W R Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee from exercising its rights under Section 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Anthracite Capital Inc), Trust Agreement (Capital Lease Funding Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5:~~8.1: -42- 49 (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor~~’s written instruction~~ 's opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or ~~willful~~ wilful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any negligence~~ its own negligence, bad faith or wilful misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ it shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (Colonial Bancgroup Inc), Trust Agreement (Colonial Capital Ii)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (ec) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including 54 any financing or continuation statement or any filing under tax or securities laws) or any re-recording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fd) the Property Trustee may consult with counsel of its own choosing (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action ~~taken,~~ taken suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (ge) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(f) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hf) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (ig) the Property Trustee may execute any of the trusts or powers hereunder or perform any of its duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jh) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same 55 proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be fully protected in acting in accordance with such instructions;; and (ki) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (Jeffbanks Inc), Trust Agreement (Jeffbanks Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the Preferred Securities~~ Capital Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice, such counsel may be counsel to the Depositor or any of its Affiliates, and may include any of its employees; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive written instructions with respect to enforcing any remedy or right ~~hereunder,~~ or taking any other action hereunder the Property Trustee (i) may request written instructions from the Holders (of the Trust Securities which written instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such written instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such written instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (J P Morgan Chase Capital X), Trust Agreement (J P Morgan Chase & Co)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; ~~provided~~PROVIDED, HOWEVER, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (PCC Capital I), Trust Agreement (PCC Capital I)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01 and except as provided by law: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Trust Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on upon an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; (d) the Property Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (e) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any Securityholder pursuant to this Trust Agreement, unless such Securityholder shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys' fees and expenses) and liabilities which might be incurred by it in complying with such request or direction; (f) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor personally or by agent or attorney; (g) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder; (h) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (i) the Property Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Trust Securities unless either (A) a Responsible Officer of the Property Trustee shall have actual knowledge of the default or Event of Default or (B) written notice of such default or Event of Default shall have been given to the Property Trustee by the Depositor~~. No~~ , the Administrative Trustees or by any Holder of the Trust Securities; (j) no provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on ~~it,~~ it in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or ~~acts,~~ acts or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty; (k) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it; (l) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any tax or securities form) (or any rerecording, refiling or registration thereof); (m) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; and (n) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders of the Trust Securities, which instructions may only be given by the Holders of the same Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such remedies, rights or actions, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions.

Appears in 2 contracts

Samples: Trust Agreement (Txu Electric Capital Viii), Trust Agreement (Txu Capital Iv)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor~~’s written instruction~~ 's opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) any direction or act of an ~~Administrative Trustee~~ Administrator contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such ~~Administrative Trustee~~ Administrator and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee or Administrator to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee or Administrator shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (State Street Boston Corp), Trust Agreement (State Street Boston Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Depositor and the Property Trustee shall be fully protected in acting in accordance with such instructions; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee shall~~ it may deem advisable and in the ~~best~~ interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except ~~for~~ in the case of a judicial determination of its own ~~negligence, bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers’ Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Depositor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee ~~reasonable~~ security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see ~~fit, and, if~~ fit at the ~~Property Trustee~~ expense of the Depositor and shall ~~determine to make~~ incur no liability of any kind by reason of such inquiry or investigation~~, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney~~; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees~~ and ~~the Property Trustee~~ shall not be responsible for ~~any negligence~~ the acts or ~~misconduct on the part~~ omissions of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) ~~without prejudice to any other rights available to~~ in no event shall the Property Trustee ~~under applicable law~~be responsible or liable for special, ~~when~~ indirect, or consequential loss or damage of any kind whatsoever (including, but not limited to, loss of profit) irrespective of whether the Property Trustee ~~incurs expenses~~ has been advised of the likelihood of such loss or ~~renders services~~ damage and regardless of the form of action; (m) in ~~connection with a Bankruptcy Event, such expenses (including legal fees and expenses~~ no event shall the Property Trustee be responsible or liable for any failure or delay in the performance of its ~~agents~~ obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and ~~counsel~~interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Property Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances; (n) the Property Trustee shall not be deemed to have notice of any Default or Event of Default unless a Responsible Officer (as defined in the Indenture) of the Property Trustee has actual knowledge thereof or unless written notice of any event which is in fact such a default is received by the Property Trustee at the Corporate Trust Office of the Trustee, and such notice references the ~~compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally~~Securities and this Indenture; and (mo) ~~whenever in~~ the ~~administration of this Trust Agreement~~ rights, privileges, protections, immunities and benefits given to the Property ~~Trustee~~ Trustee, including, without limitation, its right to be indemnified, are extended to, and shall ~~deem it desirable that a matter~~ be ~~proved or established prior to taking, suffering or omitting any action hereunder~~enforceable by, the Property Trustee ~~(unless~~ and Delaware Trustee in each of its capacities hereunder, and to each agent, custodian and other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the DepositorPerson employed to act hereunder. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (Metro Capital Trust V), Trust Agreement (Lincoln National Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred~~ Capital Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s ~~written instruction~~ opinion as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to ~~the Property Trustee,~~ the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction; provided that, ~~including reasonable advances as may~~ nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement as provided in Section 8.1(d); (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or misconduct ~~on the part~~ with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (Bb&t Corp), Trust Agreement (Bb&t Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~7.01: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if if, other than during the occurrence and continuance of an Event of Default, (i) in performing its duties under this Trust ~~Agreement~~ Agreement, the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust ~~Agreement~~ Agreement, the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Trust Preferred Security Holders ~~of the Preferred Securities~~ are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the -------- ------- Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than five Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~negligent action, ~~bad faith~~ its own negligent failure to act or its own willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel or other experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdictionthereon; (gd) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (he) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, ; and~~, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney;~~ (if) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents, attorneys, custodians~~ agents or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Heco Capital Trust Ii), Trust Agreement (Hawaiian Electric Co Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01 and except as provided by law: (ai) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, ~~bond,~~ bond debenture, note, other evidence of indebtedness or other paper or document reasonably believed by it to be genuine and to have been signed or presented by the proper party or parties; (bii) if (iA) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (iiB) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (~~iii~~C) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be ~~taken and the~~ taken. The Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on upon an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor or the Administrative Trustees; (iv) the Property Trustee may consult with counsel of its selection and the written advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon; (v) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Securityholders pursuant to this Trust Agreement, unless such Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys' fees and expenses) and liabilities which might be incurred by it in compliance with such request or direction; (vi) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond debenture, note or other evidence of indebtedness or other paper or document reasonably believed by it to be genuine, unless requested in writing to do so by one or more Securityholders, but the Property Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such further inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor personally or by agent or attorney; (vii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents or attorneys, and the Property Trustee shall not be responsible for any misconduct or negligence on the part of any agent or attorney appointed with due care by it hereunder, provided that the Property Trustee shall be responsible for its own negligence or recklessness with respect to selection of any agent or attorney appointed by it hereunder. (viii) the Property Trustee shall not be liable for any action taken, suffered, or omitted to be taken by it in good faith and reasonably believed by it to be authorized or within the discretion or rights or powers conferred upon it by this Trust Agreement; (ix) the Property Trustee shall not be charged with knowledge of any default or Event of Default with respect to the Trust Securities unless either (1) a responsible officer of the Property Trustee shall have actual knowledge of the default or Event of Default or (2) written notice of such default or Event of Default shall have been given to the Property Trustee by the Depositor~~. No~~ , the Administrative Trustees or by any Holder of the Trust Securities; (x) no provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on ~~it,~~ it in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or ~~acts,~~ acts or to exercise any such right, power, duty or obligation; and no permissive or discretionary power or authority available to the Property Trustee shall be construed to be a duty; and (xi) no provision of this Trust Agreement shall require the Property Trustee to expend or risk its own funds or otherwise incur personal financial liability in the performance of any of its duties or in the exercise of any of its rights or powers, if the Property Trustee shall have reasonable grounds for believing that the repayment of such funds or liability is not reasonably assured to it under the terms of this Trust Agreement or adequate indemnity against such risk or liability is not reasonably assured to it; (xii) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any tax or securities) (or any rerecording, refiling or registration thereof); (xiii) the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; and (xiv) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder the Property Trustee (i) may request instructions from the Holders of the Trust Securities, which instructions may only be given by the Holders of the same proportion and liquidation amount of the Trust Securities as would be entitled to direct the Property Trustee under the terms of this Trust Agreement in respect of such remedies, right or action, (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received, and (iii) shall be protected in acting in accordance with such instructions.

Appears in 2 contracts

Samples: Trust Agreement (Tu Electric Capital I), Trust Agreement (Tu Electric Capital Ii)

Certain Rights of Property Trustee. Subject to the provisions of ~~Section~~ SECTION 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; ~~provided~~PROVIDED, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; PROVIDED, HOWEVER, that nothing contained in this SECTION 8.7(G) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers in it vested by this Trust Agreement; provided, further, that nothing contained in this SECTION 8.7(G) shall prevent the Property Trustee from exercising its rights under SECTION 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Uici), Trust Agreement (Uici)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained ~~herein~~ herein, or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the ~~Preferred Securities~~ Apex are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the ~~Depositor~~ Sponsor requesting the ~~Depositor~~Sponsor’s ~~written instruction~~ opinion as to the course of action to be ~~taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor~~taken; provided, however, that if the ~~Property Trustee does not receive~~ Sponsor fails to deliver such ~~instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice~~opinion, the Property Trustee ~~may, but shall be under no duty to,~~ may take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the ~~best~~ interests of the Holders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein;~~Certificate; TRUST AGREEMENT (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or re-registration thereof; (f) the Property Trustee may consult with counsel of its own selection (which counsel may be counsel to the ~~Property Trustee, the Depositor~~ Sponsor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity satisfactory to it against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities that might be incurred by it in compliance with such request or direction~~, including reasonable advances as may~~ ; provided that nothing contained in this Section 8.3(g) shall be ~~requested by~~ taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see ~~fit, and, if~~ fit at the ~~Property Trustee~~ expense of the Sponsor and in all events shall ~~determine to make~~ incur no liability of any kind by reason of such inquiry or investigation~~, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney~~; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents,~~ agents or attorneys, ~~custodians or nominees and~~ provided that the Property Trustee shall be responsible only for its own negligence or willful misconduct with respect to selection of any agent or attorney appointed by it hereunder and shall not be ~~responsible~~ liable for any ~~negligence~~ act or ~~misconduct on the part~~ omission of ~~any~~ such ~~agent, attorney, custodian~~ agent or ~~nominee appointed~~ attorney selected with due ~~care by it hereunder~~care; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; TRUST AGREEMENT (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Issuer Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to any Issuer Trustee shall be construed to be a duty; (l) the Property Trustee shall not be liable to the Sponsor or the Administrative Trustees for special, indirect or consequential damages except to the extent caused by its negligence, willful misconduct or bad faith; (m) in no event shall the Property Trustee be responsible or liable to the Sponsor or the Administrative Trustees for any failure or delay in the performance of its obligations hereunder arising out of or caused by, directly or indirectly, forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the Property Trustee shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances; and (n) the rights, privileges, protections, immunities and benefits given to the Property Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Property Trustee in each of its capacities hereunder.

Appears in 2 contracts

Samples: Trust Agreement (Goldman Sachs Group Inc), Trust Agreement (Goldman Sachs Group Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01: (a) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request, ~~direction,~~ consent, order, appraisal, bond, debenture, approval, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the ~~Holders of the~~ Preferred ~~Securities~~ Securityholders are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Depositor and the Property Trustee shall be fully protected in acting in accordance with such instructions; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the ~~best~~ interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except ~~for~~ in the event of a final judicial determination of its own ~~negligence, bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ~~Certificate unless otherwise expressly provided herein~~Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it necessary or desirable that a matter be proved or established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and conclusively rely upon an Officers’ Certificate which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed~~ the Depositor or the Administrative Trustees, and such Officers’ Certificate shall be full warrant to the Property Trustee for any action taken, suffered or omitted by ~~such Administrative Trustee and setting forth such direction or act~~it under the provisions of this Agreement upon the faith thereof; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel of its selection (which counsel may be counsel to the ~~Property Trustee, the~~ Depositor or any of its Affiliates~~, and may include any of its employees~~) and the advice or any opinion of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee ~~reasonable~~ such security or indemnity as is satisfactory to it in its reasonable judgment against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, entitlement, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more ~~Holders~~Securityholders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, custodians, nominees or attorneys, ~~custodians or nominees~~ and the Property Trustee shall not be responsible for ~~any negligence~~ the negligence, willful misconduct or ~~misconduct on the part~~ recklessness of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it in good faith hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) ~~without prejudice to any other rights available to~~ the Property Trustee ~~under applicable law~~shall not be liable except for the performance of such duties and obligations as are specifically set forth in this Agreement or as specifically directed by the Depositor, ~~when~~ the Administrative Trustees or Securityholders pursuant to the terms hereof, and no implied covenants or obligations shall be read into this Trust Agreement against the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; andTrustee; (m) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem~~ have no obligation to invest and reinvest any cash held by it ~~desirable that a matter be proved~~ in the absence of timely and specific written investment direction from the Depositor or ~~established prior to taking, suffering or omitting any action hereunder,~~ an Administrative Trustee. In no event shall the Property Trustee be liable for the selection of investments or for investment losses incurred thereon. The Property Trustee shall have no liability in respect of losses incurred as a result of the liquidation of any investments prior its stated maturity; (~~unless other evidence be herein specifically prescribed~~n) ~~may,~~ in the absence of bad faith on ~~its part~~the part of the Property Trustee, ~~request~~ the Property Trustee may conclusively rely, as to the truth of the statements and ~~rely on an Officers’ Certificate which~~the correctness of the opinions expressed therein, upon ~~receipt~~ any certificates or opinions furnished to the Property Trustee which conform to the requirements of ~~such request~~this Trust Agreement; (o) neither the Property Trustee nor any of its officers, directors, employees or agents shall be ~~promptly delivered~~ liable (including, without limitation, for consequential loss or damages) for any action taken or omitted under the Trust Agreement or in connection therewith except to the extent caused by the ~~Depositor~~Property Trustee’s negligence, bad faith or willful misconduct, as determined by the final judgment of a court of competent jurisdiction, no longer subject to appeal or review. The parties each (for itself and any Person claiming through it) hereby releases, waives, discharges, exculpates and covenants not to xxx the Property Trustee for any action taken or omitted under this Trust Agreement except to the extent caused by the Property Trustee’s negligence, bad faith or willful misconduct; and (p) the Property Trustee may request that the Depositor or the Administrative Trustees delivery a certificate and/or Board Resolutions, as the Depositor or Administrative Trustees deem appropriate, setting forth the names of individuals and/or titles of officers authorized at such time to take specified actions pursuant to this Trust Agreement. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (PartnerRe Finance B LLC), Trust Agreement (PartnerRe Finance B LLC)

Certain Rights of Property Trustee. Subject to the provisions of ~~Section~~ SECTION 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; ~~provided~~PROVIDED, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of or bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Bankatlantic Bancorp Inc), Trust Agreement (Bankatlantic Bancorp Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s 's written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ ' Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ ' fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the ~~Depositor~~Depositor as may reasonably relate to such facts or matters, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ ' Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Bluegreen Corp), Trust Agreement (Bluegreen Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.01: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation or instruction of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with ~~any~~ other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting written instructions of the ~~Depositor’s written instruction~~ Depositor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Depositor and shall have no liability whatsoever for such action or inaction except for its own bad faith, negligence or willful misconduct; provided, however, that if the Property Trustee does not receive such instructions of the Depositor within ~~ten (10)~~ 10 Business Days after it has delivered such ~~notice~~ notice, or such ~~reasonably~~ shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Ozark Capital Trust), Trust Agreement (Bank of the Ozarks Inc)

Certain Rights of Property Trustee. (a) Subject to the provisions of Section ~~8.5~~3.9: (ai) the Property Trustee may conclusively rely and shall be fully protected in acting or refraining from acting ~~in good faith and in accordance with the terms hereof~~ upon any ~~resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other~~ resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order~~, appraisal~~, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been ~~signed~~ signed, sent or presented by the proper party or parties; (bii) ~~if (i) in performing its duties under~~ any direction or act of the Sponsor or the Administrative Trustees contemplated by this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or may be sufficiently evidenced by an Officers' Certificate; (iii) whenever in the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms administration of this Trust Agreement, the Property Trustee shall ~~deliver~~ deem it desirable that a ~~notice to the Depositor requesting the Depositor’s written instruction as to the course of action to~~ matter be ~~taken and the Property Trustee shall take such action,~~ proved or ~~refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from~~ established before taking, ~~by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice~~ suffering or ~~such reasonably shorter period of time set forth in such notice~~omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, ~~but~~ in the absence of bad faith on its part, request and conclusively rely upon an Officers' Certificate which, upon receipt of such request, shall be ~~under no duty to, take such action,~~ promptly delivered by the Sponsor or ~~refrain from taking such action, as~~ the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconductAdministrative Trustees; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (eiv) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (fv) the Property Trustee may consult with counsel ~~(which counsel may be counsel to the Property Trustee, the Depositor~~ or ~~any~~ other experts of its ~~Affiliates, and may include any of its employees)~~ selection and the advice or opinion of such counsel and experts with respect to legal matters or advice within the scope of such experts' area of expertise shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in ~~reliance thereon and in~~ accordance with such ~~advice;~~ advice or opinion, such counsel may be counsel to the Sponsor or any of its Affiliates, and may include any of its employees. The Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (gvi) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any ~~of the Holders pursuant to this Trust Agreement~~Holder, unless such ~~Holders~~ Holder shall have ~~offered~~ provided to the Property Trustee ~~reasonable~~ security ~~or indemnity~~ and indemnity, reasonably satisfactory to the Property Trustee, against the costs, expenses (including reasonable attorneys’ ' fees and ~~expenses~~expenses and the expenses of the Property Trustee's agents, nominees or custodians) and liabilities that might be incurred by it in ~~compliance~~ complying with such request or direction, including such reasonable advances as may be requested by the Property Trustee; provided, that, nothing contained in this Section 3.10(a)(vi) shall be taken to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; (hvii) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, ~~approval,~~ bond, debenture, ~~note or~~ note, other evidence of indebtedness or other paper or document, ~~unless requested in writing to do so by one or more Holders,~~ but the Property ~~Trustee~~ Trustee, in its discretion, may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (iviii) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through ~~its~~ agents, ~~attorneys~~custodians, ~~custodians~~ nominees or ~~nominees~~ attorneys and the Property Trustee shall not be responsible for any misconduct or negligence ~~or misconduct~~ on the part of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed with due care by it hereunder; (jix) any action taken by the Property Trustee or its agents hereunder shall bind the Trust and the Holders of the Securities, and the signature of the Property Trustee or its agents alone shall be sufficient and effective to perform any such action and no third party shall be required to inquire as to the authority of the Property Trustee to so act or as to its compliance with any of the terms and provisions of this Trust Agreement, both of which shall be conclusively evidenced by the Property Trustee's or its agent's taking such action; (x) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Securities which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the ~~Trust~~ Securities as would be entitled to direct the Property Trustee under ~~this Trust Agreement~~ the terms of the Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in conclusively relying on or acting in or accordance with such instructions; (kxi) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (mxii) ~~whenever in the administration of this Trust Agreement~~ the Property Trustee shall ~~deem it desirable that a matter~~ not be ~~proved or established prior to taking, suffering or omitting~~ liable for any action ~~hereunder~~taken, suffered, or omitted to be taken by it in good faith, without negligence, and reasonably believed by it to be authorized or within the ~~Property Trustee~~ discretion or rights or powers conferred upon it by this Trust Agreement. (~~unless other evidence be herein specifically prescribed~~b) ~~may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor.~~ No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (New South Capital Trust I), Trust Agreement (New South Capital Trust I)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; ~~provided,~~ provided that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee from exercising its rights under Section 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Gramercy Capital Corp), Trust Agreement (Beazer Homes Usa Inc)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of an Administrative Trustee, a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; provided, that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers in it vested by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee from exercising its rights under Section 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. (n) in the event that the Property Trustee is also acting as Paying Agent, Authenticating Agent (as defined in the Indenture), Securities Registrar or Calculation Agent hereunder, the rights and protections afforded the Property Trustee pursuant to this Article VIII shall also be afforded such Paying Agent, Authenticating Agent, Securities Registrar or Calculation Agent. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Homebanc Corp), Trust Agreement (Homebanc Corp)

Certain Rights of Property Trustee. Subject to the provisions of Section ~~8.5~~8.1: (a) the Property Trustee may ~~conclusively~~ rely and shall be protected in acting or refraining from acting in good faith ~~and in accordance with the terms hereof~~ upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other ~~resolution,~~ certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if no Event of Default has occurred and is continuing and, (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of ~~action,~~ action or (ii) in construing any of the provisions of in this Trust Agreement the Property Trustee finds ~~a provision~~ the same ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of ~~the~~ Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the ~~Depositor~~ Sponsor requesting written instructions of the ~~Depositor’s written instruction~~ Sponsor as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the ~~Depositor~~Sponsor; provided, however, that if the Property Trustee does not receive such instructions of the ~~Depositor~~ Sponsor within ten ~~(10)~~ Business Days after it has delivered such ~~notice~~ notice, or such reasonably shorter period of time set forth in such ~~notice~~notice (which to the extent practicable shall not be less than two Business Days), ~~the Property Trustee~~ it may, but shall be under no duty to, take ~~such action,~~ or refrain from taking such ~~action,~~ action not inconsistent with this Trust Agreement as ~~the Property Trustee~~ it shall deem advisable and in the best interests of the ~~Holders~~Securityholders, in which event the Property Trustee shall have no liability except for its own ~~negligence~~bad faith, ~~bad faith~~ negligence or willful misconduct; (c) any direction or act of the ~~Depositor~~ Sponsor or the Administrative Trustees contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers~~’ Certificate unless otherwise expressly provided herein~~' Certificate; (d) ~~any direction or act~~ whenever in the administration of ~~an Administrative Trustee contemplated by~~ this Trust ~~Agreement~~ Agreement, the Property Trustee shall deem it desirable that a matter be established before undertaking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence is herein specifically prescribed) may, in the absence of bad faith on its part, request and rely upon an Officers' Certificate and an Opinion of Counsel which, upon receipt of such request, shall be ~~sufficiently evidenced~~ promptly delivered by ~~a certificate executed by such~~ the Sponsor or the Administrative ~~Trustee and setting forth such direction or act~~Trustees; (e) the Property Trustee shall have no duty to ~~see to~~ accomplish any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any ~~re-recording~~rerecording, ~~re-filing~~ refiling or ~~re-registration~~ reregistration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the ~~Property Trustee, the Depositor~~ Sponsor or any of its Affiliates, and may include any of its employees) and the advice of such counsel or any Opinion of Counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; and the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the ~~Holders~~ Securityholders pursuant to this Trust Agreement, unless such ~~Holders~~ Securityholders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses ~~(including reasonable attorneys’ fees and expenses)~~ and liabilities ~~that~~ which might be incurred by it in compliance with such request or direction~~, including reasonable advances as may be requested by the Property Trustee~~; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any ~~resolution~~resolutions, certificate, statement, instrument, opinion, report, notice, request~~, direction~~, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by ~~one~~ Holders of record of 25% or more ~~Holders~~of the Preferred Securities (based upon their Liquidation Amount), but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or attorney; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its ~~agents~~agents or attorneys or an Affiliate, ~~attorneys, custodians or nominees and~~ provided that the Property Trustee shall ~~not~~ be responsible for ~~any~~ its own negligence or ~~misconduct on the part~~ recklessness with respect to selection of any ~~such agent, attorney, custodian~~ agent or ~~nominee~~ attorney appointed ~~with due care~~ by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right or taking any other action hereunder, the Property Trustee (i) may request instructions from the Holders (of the Trust Securities, which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under ~~this~~ the terms of the Trust ~~Agreement~~ Securities in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are ~~received~~ received, and (iii) shall be protected in acting in accordance with such instructions;; and (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on ~~any~~ the Property Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which ~~such Person~~ the Property Trustee shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation. No permissive power or authority available to the Property Trustee shall be construed to be a duty.

Appears in 2 contracts

Samples: Trust Agreement (CMS Energy Trust V), Trust Agreement (CMS Energy Trust V)

Certain Rights of Property Trustee. Subject to the provisions of Section 8.5: (a) the Property Trustee may conclusively rely and shall be protected in acting or refraining from acting in good faith and in accordance with the terms hereof upon any resolution, Opinion of Counsel, certificate, written representation of a Holder or transferee, certificate of auditors or any other resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, appraisal, bond, debenture, note, other evidence of indebtedness or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties; (b) if (i) in performing its duties under this Trust Agreement the Property Trustee is required to decide between alternative courses of action, (ii) in construing any of the provisions of this Trust Agreement the Property Trustee finds a provision ambiguous or inconsistent with any other provisions contained herein or (iii) the Property Trustee is unsure of the application of any provision of this Trust Agreement, then, except as to any matter as to which the Holders of the Preferred Securities are entitled to vote under the terms of this Trust Agreement, the Property Trustee shall deliver a notice to the Depositor requesting the Depositor’s written instruction as to the course of action to be taken and the Property Trustee shall take such action, or refrain from taking such action, as the Property Trustee shall be instructed in writing to take, or to refrain from taking, by the Depositor; ~~provided,~~ provided that if the Property Trustee does not receive such instructions of the Depositor within ten (10) Business Days after it has delivered such notice or such reasonably shorter period of time set forth in such notice, the Property Trustee may, but shall be under no duty to, take such action, or refrain from taking such action, as the Property Trustee shall deem advisable and in the best interests of the Holders, in which event the Property Trustee shall have no liability except for its own negligence, bad faith or willful misconduct; (c) any direction or act of the Depositor contemplated by this Trust Agreement shall be sufficiently evidenced by an Officers’ Certificate unless otherwise expressly provided herein; (d) any direction or act of an Administrative Trustee contemplated by this Trust Agreement shall be sufficiently evidenced by a certificate executed by such Administrative Trustee and setting forth such direction or act; (e) the Property Trustee shall have no duty to see to any recording, filing or registration of any instrument (including any financing or continuation statement or any filing under tax or securities laws) or any re-recording, re-filing or re-registration thereof; (f) the Property Trustee may consult with counsel (which counsel may be counsel to the Property Trustee, the Depositor or any of its Affiliates, and may include any of its employees) and the advice of such counsel shall be full and complete authorization and protection in respect of any action taken, suffered or omitted by it hereunder in good faith and in reliance thereon and in accordance with such advice; the Property Trustee shall have the right at any time to seek instructions concerning the administration of this Trust Agreement from any court of competent jurisdiction; (g) the Property Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this Trust Agreement at the request or direction of any of the Holders pursuant to this Trust Agreement, unless such Holders shall have offered to the Property Trustee reasonable security or indemnity against the costs, expenses (including reasonable attorneys’ fees and expenses) and liabilities that might be incurred by it in compliance with such request or direction, including reasonable advances as may be requested by the Property Trustee; provided, however, that nothing contained in this Section 8.7(g) shall be construed to relieve the Property Trustee, upon the occurrence of an Event of Default, of its obligation to exercise the rights and powers vested in it by this Trust Agreement; provided, further, that nothing contained in this Section 8.7(g) shall prevent the Property Trustee from exercising its rights under Section 8.11 hereof; (h) the Property Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution, certificate, statement, instrument, opinion, report, notice, request, direction, consent, order, approval, bond, debenture, note or other evidence of indebtedness or other paper or document, unless requested in writing to do so by one or more Holders, but the Property Trustee may make such further inquiry or investigation into such facts or matters as it may see fit, and, if the Property Trustee shall determine to make such inquiry or investigation, it shall be entitled to examine the books, records and premises of the Depositor, personally or by agent or ~~attorney~~attorney upon reasonable prior written notice and during normal business hours; (i) the Property Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either directly or by or through its agents, attorneys, custodians or nominees and the Property Trustee shall not be responsible for any negligence or misconduct on the part of any such agent, attorney, custodian or nominee appointed with due care by it hereunder; (j) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable to receive instructions with respect to enforcing any remedy or right hereunder, the Property Trustee (i) may request instructions from the Holders (which instructions may only be given by the Holders of the same proportion in Liquidation Amount of the Trust Securities as would be entitled to direct the Property Trustee under this Trust Agreement in respect of such remedy, right or action), (ii) may refrain from enforcing such remedy or right or taking such other action until such instructions are received and (iii) shall be protected in acting in accordance with such instructions; (k) except as otherwise expressly provided by this Trust Agreement, the Property Trustee shall not be under any obligation to take any action that is discretionary under the provisions of this Trust Agreement; (l) without prejudice to any other rights available to the Property Trustee under applicable law, when the Property Trustee incurs expenses or renders services in connection with a Bankruptcy Event, such expenses (including legal fees and expenses of its agents and counsel) and the compensation for such services are intended to constitute expenses of administration under any bankruptcy law or law relating to creditors rights generally; and (m) whenever in the administration of this Trust Agreement the Property Trustee shall deem it desirable that a matter be proved or established prior to taking, suffering or omitting any action hereunder, the Property Trustee (unless other evidence be herein specifically prescribed) may, in the absence of bad faith on its part, request and rely on an Officers’ Certificate which, upon receipt of such request, shall be promptly delivered by the Depositor. No provision of this Trust Agreement shall be deemed to impose any duty or obligation on any Trustee to perform any act or acts or exercise any right, power, duty or obligation conferred or imposed on it, in any jurisdiction in which it shall be illegal, or in which such Person shall be unqualified or incompetent in accordance with applicable law, to perform any such act or acts, or to exercise any such right, power, duty or obligation.

Appears in 2 contracts

Samples: Trust Agreement (Desert Capital Reit Inc), Trust Agreement (Desert Capital Reit Inc)

Common use of Certain Rights of Property Trustee Clause in Contracts